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Civil Procedure I
Rutgers University, Newark School of Law
Henderson, Taja-Nia

Civil Procedure Outline
Taja-Nia Henderson – Spring 2013
Analyzing Civil Procedure Questions
1)      Personal jurisdiction: Is there personal jurisdiction
a.       Minimum Contacts
b.      Notice and opportunity to be heard
2)      Venue: Was venue correct? 28 USC 1391
a.       District where D resides
b.      District where substantial parts of events giving rise to the claim occurred
3)      Subject Matter Jurisdiction: If it’s a federal case, does the court have SMJ?
a.       Diversity
b.      Federal Question
4)      Pleading: Are the pleadings proper?
5)      Discovery:
6)      Choice of law: What jurisdiction’s law applies to the case?
7)      Joinder
a.       Types of Joinder:
i.      Counterclaim
ii.      Joinder of claims
iii.      Joinder of parties
iv.      Intervention
v.      Interpleader
vi.      Impleader
vii.      Cross-claims
viii.      Class actions
b.      Jurisdiction: See if the PJ or SMJ is satisfied
i.      Supplemental jurisdiction: If supplemental jurisdiction applies, you don’t need to meet SMJ
8)      Former adjudication: Are the results of some prior litigation binding in the current suit
Introduction to Civil Procedure
1)      Courts Power:
a.       Preliminary and Temporary Injunctions: A court of equity has the power to issue an order to preserve the status quo in order to protect its ability to render judgment in a case over which it might have jurisdiction
i.      In rem: Federal courts may issue injunctions binding on persons who come into contact with property which is the subject of a judicial decree.
ii.      Third party prohibition: A party or non-party cannot prevent the court to enforce its own judgment
iii.      Threatened Rights of Prior Litigations: If activities of an individual threaten the rights of previous litigants adjudicated from a past decision, the courts can issue a preliminary injunction to protect their judgments
b.      Contempt: Courts have jurisdiction to punish for contempt in order to protect their ability to render judgment.
c.       FRCP 65(d) Forms and Scope of Injunction:  Limits the binding effect of injunctive orders to parties to the action, their agents and attorneys and those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise
i.      Requirements: Every order granting an injunction and every restraining order shall set forth the
1.       Reasons: reasons for its issuance;
2.       Specific and Reasonable Detail: shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and
3.       Persons Binding: is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.
ii.      Non-parties: A decree of injunction also binds parties identified with the defendant parties in interest, in privity with them, represented by them or subject to their control
2)      US v Hall: Federal district court issued an interim ex parte order restraining unauthorized persons from entering school grounds and the court served notice on a non-party but the non-party entered the grounds for the purpose of violating the order
a.       Rationale:
i.      Rule 65d: It was meant to embody the court’s powers and not limit it
ii.      Threat of the court: The activities of people contributing to racial disorder imperiled the court’s power to make binding adjudication to the parties in the underlying desegregation suit
iii.      Segregation orders: Excite community passions and, like in rem orders, are vulnerable to disruption by an indefinable class of persons who are neither parties nor acting at the instigation of the parties
iv.      In rem: A court entering a decree binding on a particular piece of property is faced with danger that judgment may be disrupted in the future by members of an undefinable class who may come into contact with the property
b.      Notes:
i.      Ex Parte: A proceeding commenced by one party without providing an opposing party with notice or that is uncontested by an adverse party
ii.      Jurisdiction: Power to decide a case and issue continuing orders of the case
iii.      5th circuit Decision
3)      United States Code: Rule Making Power
a.       28 USC 2071: Rule Making Power Generally
i.      Power to Make Rules: SCOTUS and all inferior federal courts can prescribe rules of conduct consistent with 28 USC 2072
1.       District courts: District courts can only make rules under this section
ii.      Notice and Opportunity for Comment Requirement: Any rule prescribed by a court, other than SCOTUS must give appropriate public notice and opportunity for comment
1.       Exception: If the court determines immediate need for a rule it does not need to provide this, but must afford it after
iii.      Date and Pending Proceedings: The rule takes place on the date specified and has an effect on all pending proceedings
iv.      Modifications of Rules:
1.       District court rules: It remains in effect unless modified or abrogated by the judicial council of their circuit
2.       Other Rules other than SCOTUS: It remains in effect unless modified or abrogated by the Judicial Conference
v.      Copy Disclosure: Copies of all rules other than SCOTUS shall be furnished to the Director of the Administrative Office of the US and made available to the public
b.      28 USC 2072: Rules of Procedure and Evidence; Power to Prescribe
i.      Power to Prescribe: The Supreme Court shall have the power to prescribe general rules of practice and procedure and rules of evidence for cases in the United States district courts (including proceedings before magistrates thereof) and courts of appeals.
ii.      No Abridgement, Enlargement or Modification: Such rules shall not abridge, enlarge or modify any substantive right.
iii.      Conflicts with other laws: All laws in conflict with such rules shall be of no further force or effect after such rules have taken effect.
iv.      Finality: Such rules may define when a ruling of a district court is final for the purposes of appeal under section 1291
c.       28 USC 2073: Method of Prescribing
i.      Judicial Conference Duties: shall prescribe and publish the procedures for the consideration of proposed rules under this section.
ii.      Appointment of Assistant Committees: The Judicial Conference may authorize the appointment of committees to assist the Conference by recommending rules to be prescribed under sections 2072 and 2075
1.       Committee Members: Each such committee shall consist of members of the bench and the professional bar, and trial and appellate judges.
iii.      Appointment of Standing Committees: The Judicial Conference shall authorize the appointment of a standing committee on rules of practice, procedure, and evidence under subsection (a)
1.       Standing Committee Duties: standing committee shall
a.       Review: Review each recommendation of any other committees so appointed and
b.      Recommendations: recommend to the Judicial Conference rules of practice, procedure, and evidence and such changes in rules proposed by a committee appointed under subsection (a)(2) of this section
c.       General welfare: These duties are done as may be necessary to maintain consistency and otherwise promote the interest of justice.
iv.      Meetings Generally Open to the Public: Each meeting for the transaction of business under this chapter by any committee appointed under this section shall be open to the public
1.       Exception for Closed Meeting: The meeting does not have to be open if, in open session and with majority present

f additional or substitute procedural safeguards
3.       Governmental Interest: The government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail
a.       Financial cost: Financial cost alone is not controlling weight
iii.      Existing Procedures: A factor to be considered in determining whether they comport with due process is the fairness and reliability of the existing procedures and probable value of additional safeguards
b.      Pre-termination of Benefits
i.      Termination of Welfare Benefits: When welfare benefits are involved, the 14th amendment requires recipients to be afforded an evidentiary hearing prior to termination of benefits.
1.       Minimum procedural safeguards: The only thing necessary at the pre-termination stage are “minimum procedural safeguards” and at the very least, the person must have an opportunity to state his case orally to an impartial decision-maker
a.       Fair Hearing: A fair hearing is sufficient for an evidentiary hearing because it will provide the recipient full administrative review.
2.       Not Necessary at pre-termination stage
a.       Judicial or quasi-judicial trial
b.      Complete record and opinion
ii.      Disability Benefits: The Due Process Clause of the 5th amendment does not require that the recipient be afforded an opportunity for an evidentiary hearing prior to termination of Social Security disability benefit payments
1.       Establishing continued entitlement of disability benefits: The worker must demonstrate that he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can result in death or which has lasted or can be expected to last for 12 months or more
c.       Labeling and Designations:
i.      Socialist or Fascist: An opportunity to be heard must be given before the government labels an individual as a socialist
ii.      Designation and Detention of Enemy Combatant: Due Process requires that a US Citizen being held an enemy combatant be given meaningful opportunity to contest the factual basis for his detention
1.       Meaningful opportunity requirements:
a.       Notice of basis: Notice of the factual basis for the combatant classification and
b.      Opportunity for rebuttal: A fair opportunity to rebut the government’s factual assertions before a neutral decision maker
2.       Balancing Test for Government Power: The court must weigh the
a.       Governmental interests in confining enemy combatants and
b.      The individual liberty rights of the detainee
3.       Proceeding requirements: It’s not necessary to have initial due process hearings for captures but those detained further needs further proceedings
5)      Cases:
a.       Goldberg v Kelly: NY Welfare recipients sued NYS since they terminated aid without prior notice but there was no requirement of prior notice or hearing before termination of aid
i.      Rationale:
1.       Importance of Welfare: Welfare provides minimum subsistence and termination of aid pending a hearing deprives eligible recipients a means to live because it provides food, clothing, house and medical care
2.       Desperate situation: The situation becomes immediately desperate because there are no other independent resources and so they must concentrate on finding daily subsistence instead of seeking redress from the welfare bureaucracy
3.       14th amendment: Applies
ii.      Notes: